Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
PETITIONER:
U.P. JAL NIGAM & ORS.
Vs.
RESPONDENT:
NARINDER KUMAR AGARWAL
DATE OF JUDGMENT: 31/01/1996
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
PARIPOORNAN, K.S.(J)
CITATION:
1996 AIR 1661 1996 SCC (2) 363
JT 1996 (1) 641 1996 SCALE (1)624
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Delay Condoned. Leave granted.
The appellant-U.P. Jal Nigam was formed under the U.P.
Water Supply and Sewerage Act, 1975. Consequentially, the
persons working in the Local Self Government Engineering
Department of U.P. were transferred to the appellant’s
administrative control. In exercise of power under Section
97 of the Act, U.P.Jal Nigam Engineers (Public Health
Branch) Services Regulations, l978 (for short,
’Regulations’) were framed. Rule 5 of the Regulations
envisaged that :
"5. Keeping into consideration
rules 6, 17 and 18, recruitment
from the following sources:
(1) Asstt. Engineer;
A. Direct recruitment on the basis
of result of competitive
examination or as prescribed in
part 5 of the rules for
recruitment.
But in case of emergency the Nigam
can made recruitment on the basis
of interview also.
Note:- Initial recruitment to the
post of Asstt. Engineer will be
made against only temporary
vacancies.
(2) Junior Engineers and computers
of the former Local Self-Govt.
Department and/or in the service of
Jal Nigam by promotion of those
candidates who have rendered
continuous service of ten years in
the former LSGD and/or U.P. Jal
Nigam or any other department.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
Temporary service will be counted
for this purpose. The candidates
fulfilling these conditions and
also fall within the ambit of Rule
16(3) will be considered.
Note:- The details for recruitment
to the post of Junior Engineer and
computer is given in condition 1.
But recruitment will be done in
such a way that 25% of the
vacancies are filled by promotion
and the rest by direct recruitment.
Any relaxation in this percentage
will be permitted only when
suitable candidates are not
available.
Rule 10 prescribes that no person will be recruited
direct in the civil side unless he holds a degree in Civil
Engineering or its equivalent from recognized university or
he has passed part A and B of AMIE. Clause 6 thereof also
provides that no person shall be recruited to the mechanical
side on similar conditions. The ratio for direct recruitment
is 75% and for promotes 25% and while calculating the
vacancies the ratio of 25% for promotes always be
maintained. Rule 10(3) which is relevant for the purpose
envisages that Computers and Junior Engineers in the service
of former LSGD or Jal Nigam will not be promoted to the post
of Asstt. Engineering (Civil) or (Mechanical) under rule
5(1)(ka)(two) unless he has passed the condition prescribed
in Rule 10(1) and 10(2) of the Regulations. The note
appended thereto given liver for relaxation of conditions of
recruitment and can adopt any other criteria for the
selection and promotion of Junior Engineers and Computers to
the post of Assistant Engineer. ln other words, the note
enabled them only to relax the rules prescribed for passing
the qualifying examination for selection to the posts of
Asstt. Engineers. At this juncture, we would observe that
the rule runs contrary to the settled service jurisprudence
and the law laid down by this Court and deleterious to
augment efficacy of service and would dry out the source to
improve excellence and honest service. However, since note
is not the subject matter of attack, we need not observe any
further.
Rule 18 provides the right to promotion which envisages
that "For promotion to the post of executive engineer
seniority will be the criteria and for promotion if the post
of Asstt. Engineer, Superintending Engineer and Chief
Engineer, the merit will be the criteria". The Jal Nigam in
exercise of the power of relaxation under the note passed a
resolution on 31.12.1983 that it is not appropriate to
change the criteria every time and it is not necessary to
change the basis on which selection has been made
previously. Therefore, the procedure was reiterated as
under:
"The preceding five years annual
confidential record of each
candidate shall be perused. If
there are more than half good
entries or entries higher than that
then the candidate shall be
considered fit for selection".
According to the decision taken by
the Jal Nigam in its 62nd meeting,
the condition of passing the
qualifying examination for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
candidates eligible upto 31.12.83
has been relaxed and instead the
condition of gradation on the basis
of service records has been made
the basis for promotion. In order
to determine merits, the
confidential entries of all the
candidates falling within the zone
of consideration be scrutinized
even though their integrity has not
been certified."
18 vacancies of Assistant Engineers have arisen and the
erstwhile officers from LSGD or those appointed under the
Nigam have been considered for promotion from 25% quota
reserved for inservice candidates. Under the resolution
No.502, dated 19.5.1983, it was resolved that 10 years
continuous service either in the erstwhile department or
under the Nigam is a pre-condition of which 5 years in Nigam
was necessary for promotion. It was also resolved that 5% of
25% was reserved for graduate Engineers who should complete
5 years of service in Jal Nigam. Following the above
criteria, the candidates were considered and selected. It
would appear that first selection on September 24, 1983 and
the second selection in August 1984 were made.
The respondent who was appointed as a Junior Engineer
in LSGD on April 12, 1973 had passed his BE degree
qualifying examination on November 3, 1982. He had put in 10
years of service as J.E. as on 13.4.1983. Since he was a
graduate and was eligible for promotion in general 25% quota
as well as the graduates quota of 5%, but does not appear to
have been considered on September 4, 1983 for selection.
Again in the second selection held in August, 1984 also he
was considered but was not selected. As a consequence, he
filed the Writ Petition No.14229/84.
The Allahabad High Court by order dated 17.1.1982
allowed the Writ Petition and directed to consider the case
of the respondent in the 25% quota reserved for promotes for
the relevant year proceedings dated 20.2.1992 have been
placed before us in which as per the directions of the Court
the appellant had considered his cases an additional post
was created and he was promoted in 25% quota reserved for
promotes as a special case.
Shri K. Madhava Reddy, the learned senior counsel for
the appellant contended that the note to the rule referred
to hereinbefore gives power to the Board to relax the
criteria; the Board having relaxed the criteria considered
all the persons including 54 persons who are eligible
according to the norm laid down; the respondent was not
considered since he did not come up within the zone of
consideration. It is also contended that out of 5% quota
reserved for the graduates, 17 candidates including the
respondent on Serial No.13 were considered. Since the
criteria being merit and ability, the more meritorious were
promoted and the respondents, therefore, could not be
selected. The High Court had proceeded on a wrong premise,
namely, the respondent was not considered within 25% quota
and he was alone the graduate eligible but was not
considered for promotion. It is stated that in view of the
fact that 17 candidates, who are graduates, were considered
and merit and ability being the criteria, the premise on
which the High Court proceeded is, therefore, not valid in
law.
Shri A.K. Srivastava, the learned Advocate General of
Sikkim appearing for the respondent, contended that the
respondent having duly qualified for promotion in April 1983
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
by which date the criteria of relaxation was not made, ought
to have considered but was not considered according to the
rules. Even in August 84 selection also he was not
considered as he was fully qualified to be considered.
Therefore, the High Court was right in granting the
direction and, therefore, there is no merit in the case of
the appellants.
It would appear that the appellant with a view to see
that all eligible persons would come within the zone of
consideration for promotion adopted a general rule of
relaxation and considered the cases of all the persons. But
from the resolution, we are unhappy to note that even merit
or integrity have been sacrificed as mentioned that they are
not relevant for consideration. It is settled law that merit
and integrity are the sole consideration for selecting posts
and seniority would become relevant only when merit of all
candidates are approximately equal. The Board seems to have
taken a reverse gear, obviously to facilitate persons who
are not having that much of integrity and ability. However,
since the promotion given to the persons has not been put in
issues we need not express any doubt on their selection but
we are unhappy to note the way in which the Jal Nigam is
functioning in considering the promotion of the officers to
improve excellence or to inculcate efficiency, integrity and
honesty in the officers to reach higher echelons of service.
It is seen that since the criteria of zone of
consideration was adopted as per the resolution an 54
persons were considered and the respondent did not come up
in the zone of consideration, we cannot find fault with the
non-consideration of the respondent in that zone of
consideration of 54 candidates. ln the quota of 5% reserved
for graduates, though the respondent has fulfilled the
qualifications and was eligible to be considered, he was
included in the penal of the candidates, the selection was
made by the committee constituted in that behalf. The
committee appears to have proceeded on the premise of merit
and ability and evaluated the criteria of all the 17
candidates and selected four candidates who were standing at
No.1,2,6 and 8. In the absence of any compelling
circumstances brought to our notice to show that the
selected candidates are not possessed of superior merit and
ability than that of the respondents we do not think that
the selection is beset with any illegality. However, in view
of the circumstances that pursuant to the direction given by
the High Court, the claim of the respondent had already been
considered and he has been promoted, we do not incline to
interfere with the order of the High Court.
The appeal is accordingly dismissed with the above
declaration of law and observations. No costs.